631 F.2d 1008 (D.C. Cir. 1980), 79-1871, Carson v. United States Dept. of Justice

Docket Nº:79-1871.
Citation:631 F.2d 1008
Party Name:Birchel L. CARSON, Appellant, v. U. S. DEPARTMENT OF JUSTICE et al.
Case Date:August 27, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1008

631 F.2d 1008 (D.C. Cir. 1980)

Birchel L. CARSON, Appellant,



No. 79-1871.

United States Court of Appeals, District of Columbia Circuit

August 27, 1980

Argued May 29, 1980.

Appeal from the United States District Court for the District of Columbia Circuit. (Civil Action No. 79-0140).

Katherine A. Meyer, Washington, D.C., with whom David C. Vladeck, Washington, D.C., was on brief for appellant.

Sylvia A. Royce, Asst. U.S. Atty. with whom Charles F. C. Ruff, U.S. Atty., John A. Terry, Michael W. Farrell and Robert E. L. Eaton, Jr., Asst. U.S. Attys., Washington, D.C., were on brief for appellees.

Before WRIGHT, Chief Judge, and WALD and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Birchel Carson appeals an order of the district court entered on cross-motions for summary judgment under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976). That order denied Carson access to materials which were withheld by the United States Parole Commission (Parole Commission) in response to Carson's request for access to his Parole Commission files.

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The primary issue on appeal is the narrow but important question whether a presentence report is an agency record within the meaning of the FOIA. For the reasons given in Part I of this opinion we conclude that the presentence report is such a record and therefore vacate the contrary judgment entered in the district court. Our holding in this respect is no broader than the narrow question presented; we decide only that the presentence report is an agency record within the meaning of the FOIA. We do not decide, nor even suggest that the FOIA mandates disclosure of all or some part of the presentence report; these questions we leave to the district court on remand.

The other issues presented by this appeal are treated in Part II of this opinion. As we there explain, the district court's order denying FOIA access to other withheld materials is affirmed in several respects; but because we find the withholding of a few items to have been inadequately justified under controlling FOIA precedent, we vacate and remand certain other aspects of the judgment.


That the Parole Commission is an "agency" governed by the FOIA is clear. 1 However, the presentence report is prepared not by the Parole Commission but by the probation service of the United States courts, 2 and the United States courts are not agencies within the meaning of the FOIA. 3 The Department of Justice maintains that the non-agency origin of the presentence report determines its status under the FOIA. 4 The Department argues that transmission of the report from the probation service to the Parole Commission does not convert the report into a "record" of the Parole Commission for purposes of the FOIA. 5

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  1. The FOIA and the Presentence Report in the Courts

    The first reported decision to address the issue of presentence report availability under the FOIA was Cook v. Willingham, 400 F.2d 885 (10th Cir. 1968). In that case a motions panel of two judges of the Tenth Circuit issued a three paragraph per curiam opinion summarily affirming a district court decision denying access under the FOIA to a presentence report. In agreeing with the lower court's determination that "the presentence report (was) made for the use of the sentencing court and thereafter remains in the exclusive control of that court despite any joint utility it may eventually serve," id., the Cook court relied upon two factors: first, that the sentencing court had absolute discretion to grant or deny access to the report, id.; and second, that the FOIA did not apply to the courts. Id. Cook has been approved in the circuit where it was decided 6 and has been followed by other courts. 7 No subsequently decided case of which we are aware has disagreed with Cook's holding. Furthermore, Cook was cited with approval by the majority of a panel of this court in Goland v. Central Intelligence Agency, 607 F.2d 339, 346 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980), holding that a stenographic transcript of a "secret" Congressional hearing in the custody of the CIA was not an agency record under the FOIA.

  2. The FOIA's Agency Record Requirement

    The majority in Goland, in an opinion by Judge Wilkey, decided that the FOIA's applicability to a document generated by an expressly exempted non-agency (in that case the Congress) would be determined by a standard of control rather than possession: 8

    Whether a congressionally generated document has become an agency record, ... depends on whether under all the facts of the case the document has passed from the control of Congress and become property subject to the free disposition of the agency with which the document resides.

    607 F.2d at 347. Noting that the Congress retained unbridled discretion to conduct secretly the proceedings recorded in the document at issue, id. at 346, that the Congress had manifested an intent to preserve the secrecy of those proceedings, id. at 347, and that the document had been released to the agency for limited purposes, the Goland majority agreed with the district court's conclusion that the document " 'remain(ed) within the control of Congress,' " id. at 345 (quoting the district court), and denied access under the FOIA. Id. at 348.

    However, when the control test adopted by the Goland majority was subsequently applied to different sorts of congressionally generated material, a strikingly different result was reached. In Ryan v. Department of Justice, 617 F.2d 781, this court held, again in an opinion by Judge Wilkey, that United States Senators' responses to Justice Department questionnaires concerning the procedures they used for selecting and recommending potential nominees for federal judgeships were agency records subject to the FOIA. In that case the court reasoned:

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    Unless there is evidence of control by some other entity, we must conclude that the Attorney General and his Department control these documents. . . . Senators generated these materials at the specific request of the Attorney General, and they gave no indication that they wished to limit his use of them. There are no express or reasonably implied senatorial instructions concerning the Attorney General's disposition of these documents. The Senators gave no indication that their responses were to be treated as secret or sensitive, and nothing in the Attorney General's questionnaire or other circumstances indicated that Senators would have the prerogative to maintain secrecy. On this record we cannot find control by the Senators.

    Id. at 786.

    Although the Supreme Court has not had occasion to examine the control test adopted and applied on two occasions in this circuit, a recent Court decision has used language which suggests approval of this test. Kissinger v. Reporters' Committee for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 972, 63 L.Ed.2d 267 (1980) (noting that the papers at issue "were not in the control of the State Department at any time").

  3. Application of the Goland Standard to the Presentence Report

    Since the Tenth Circuit's decision in Cook, cited with approval in Goland, significant changes have occurred in the law governing presentence reports. These changes have both reduced the control over the report vested in the originating body and increased the control vested in the agency in whose possession the document resides. In our view these changes establish that the Parole Commission "controls" the presentence reports in its possession and that those reports are agency records within the meaning of the FOIA. In the discussion that follows, we analyze the various changes that have altered the status of presentence reports.

    1. Rule 32(c). Since 1975 the Federal Rules of Criminal Procedure have required sentencing courts to disclose to a requesting defendant before the imposition of sentence the contents of his presentence report, exclusive of the recommendation of sentence. 9 Material which

    in the opinion of the court . . . contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons 10

    is not required to be disclosed verbatim but may instead be summarized for the defendant by the sentencing court. 11 The wisdom of and need for presentence report disclosure was hotly debated for many years before a rule requiring disclosure was proposed by the Court and approved by the Congress. 12 In 1966, the advisory committee took note of the debate, 13 but the amendment to Rule 32 ultimately proposed and adopted in that year left the decision to disclose entirely within the discretion of the sentencing judge. 14 The 1966 advisory committee "hoped that courts (would) make increasing use of their discretion to disclose"

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    15 but until 1975 no rule governed or reduced the exercise of that discretion.

    Thus, when Cook was decided in 1968 a sentencing court's discretion under the Rules to refuse disclosure of the presentence report was absolute. Since 1975 the courts' unfettered "prerogative of maintaining secrecy" 16 in this regard has been abolished and replaced by a rule requiring verbatim disclosure upon request except with respect to certain materials as to which a factual summary must be given. The 1975 amendment substantially dilutes the sentencing court's control over the presentence report, even before that report is transmitted to the parole authorities and quite apart from the control...

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